A Conscientious Objector's Guide to the International Human Rights System

Europe

Europe has a range of European human rights systems, covering virtually all of the European continent, and even reaching beyond Europe.

The Organisation for Security and Cooperation in Europe (OSCE) grew out of the Conference for Security and Cooperation in Europe (CSCE). The Helsinki Final Act from 1975 defines “respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief” as one of the principles guiding the relations between participating States. Consequently, the OSCE monitors the human rights situation in its 56 participating States. The most relevant forum is the annual Human Dimension Implementation Meeting, organised by the OSCE Office for Democratic Institutions and Human Rights (ODIHR). In addition, the OSCE has a presence in some of its participating States.
The reach of the OSCE goes well beyond Europe, and includes the USA and Canada, and most states of the former Soviet Union, well into central Asia.

The Council of Europe was established in 1949. According to article 3 of its Statutes, every member State must accept the principle “of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”. The main human rights treaty of the Council of Europe is the European Convention on Human Rights.
Within the Council of Europe, there are several institutions of interest to conscientious objectors to military service:

The Commissioner for Human Rights (http://www.coe.int/t/commissioner/default_en.asp) is an independent institution within the Council of Europe, mandated to promote awareness of and respect for human rights in Council of Europe member states. However, the Commissioner for Human Rights does not have a mandate to act on individual complaints, but the Commissioner can draw conclusions and take wider initiatives on the basis of reliable information regarding human rights violations suffered by individuals;

The Committee of Ministers (http://www.coe.int/t/cm/home_en.asp) is the main decision-making organ of the Council of Europe, and is also tasked with overseeing the implementation of judgements of the European Court of Human Rights. The Committee of Ministers also decides on recommendations on human rights issues, including conscientious objection to military service;

The Parliamentary Assembly of the Council of Europe (http://assembly.coe.int) consists of delegates from the Parliaments of member States. The Parliamentary Assembly passes resolutions relevant to human rights, and also has a Committee on Legal Affairs and Human Rights.

The third relevant institution is the European Union (http://europa.eu/index_en.htm), which incorporated the European Charter of Fundamental Rights into primary European law when it adopted the Lisbon Treaty on 1 December 2009.
The European Union Agency for Fundamental Rights (http://fra.europa.eu/en – FRA) assists EU institutions and EU Member States in understanding and tackling challenges to safeguarding fundamental rights within the Member States of the European Union by collecting and analysing information from EU Member States.
The European Parliament (http://www.europarl.europa.eu/portal/en) can be an important body for lobbying, as it passes resolutions on human rights issues, including the right to conscientious objection to military service. The Committee on Civil Liberties, Justice and Home Affairs (http://www.europarl.europa.eu/committees/en/libe/home.html) is in charge of human rights within the European Union, while the Subcommittee on Human Rights (http://www.europarl.europa.eu/committees/en/droi/home.html) deals with human rights world-wide.
On the level of EU government – the European Commission – the European Union established a EU Special Representative (EUSR) for Human Rights.
However, the European Union does not really have a mechanism to protect human rights within its member states. Lobbying of the European Parliament or the European Commission is outside the scope of this guide.

A Conscientious Objector's Guide to the International Human Rights System

Summary

The Human Dimension Implementation Meeting (HDIM) is the Organisation for Security and Co-operation in Europe's (OSCE) primary conference to discuss the implementation of so-called “human dimension” commitments of OSCE Member States. The term “human dimension” describes the sets of norms and activities related to human rights, the rule of law and democracy that are regarded within the OSCE as one of the three pillars of its concept of Security and Co-operation in Europe. The founding document of the OSCE, the Helsinki Final Act from 1975, defines “respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief” as one of the principles guiding the relations between participating States.
NGOs are allowed to fully participate in Human Dimension Implementation Meetings, on an equal footing with government representatives. NGOs and States can make recommendations for action to both the OSCE and to participating States. All recommendations made during a Human Dimension Implementation Meeting are recorded in the final report of the meeting. Recommendations presented by NGOs and participating States are then presented to the OSCE's Ministerial Council Meeting in December of the same year.
Recommendations can also be followed up with dedicated Supplementary Human Dimension Meetings on specific issues, or with thematic Human Dimension Seminars.

1. Likely result from the use of this mechanism

During the plenary sessions of Human Dimension Implementation Meetings, the progress made by participating States in implementing their human dimension commitments is examined. NGOs have the opportunity to participate in the discussion and to highlight non-compliance with human dimension commitments, and to make specific recommendations, which will be included in the final report of the meeting.

2. To which States does this mechanism apply?

The mechanisms applies to States participating in the Organisation for Security and Co-operation in Europe (OSCE). This includes not only European States, but also several Central Asian States plus the USA and Canaca. A list of participating States is available at http://www.osce.org/who/83.

3. Who can submit information?

Any NGO participating in a Human Dimension Implementation Conference can submit information.

4. When to submit information?

NGOs wishing to participate in a Human Dimension Implementation Meeting can submit statements, background documents, and other written materials for distribution via the OSCE's Document Distribution System (DDS).

5. Special rules of procedure or advice for making a submission?

The objective of the Human Dimension Implementation Conferences is to examine the progress made by participating States in implementing their human dimension commitments. It is therefore important to refer to relevant commitments made when making a submission.

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) has published Document Preparation Guidelines (see http://www.osce.org/odihr/92511). According to the guidelines, only material from participants who are both registered and present at the respective Human Dimension Implementation Conference will be published in the Document Distribution System of the OSCE. Making a submission is therefore only useful when it is also possible to attend the Human Dimension Implementation Meeting.

When making recommendations, it should be clearly stated whether a recommendation is meant for the OSCE, or for participating States.

Organising a side event

Side events during the official Human Dimension Implementation Meeting are a good opportunity to highlight a specific topic in a more informal setting. NGOs can organise side events during the lunch breaks or evenings. ODIHR will publish the agenda of side events in its conference calendar, if information is received on time.

Lobbying of delegations

During the Human Dimension Implementation Meeting, it is also possible to meet and lobby the delegation of one's own country, or of another country.

6. What happens to the submission (how long will it take)?

Submissions by organisations participating in a Human Dimension Implementation Meeting will be published on the website of the OSCE.
Recommendations will be included in the conference report of the Human Dimension Implementation Meeting in their original form, but might also be summarised in the rapporteur's report of the conference.

7. History of the use of this mechanism

In recent years, several NGOs that work on conscientious objection to military service have submitted information and attended Human Dimension Implementation Meetings. WRI has submitted information in 2003 (see http://wri-irg.org/co/osce-rep.htm), but then did not participate in the meeting itself, so the submitted information is not available on the OSCE website.
The European Association of Jehovah's Christian Witnesses regularly submits information and attends the Human Dimension Implementation Meetings.

Legal Bases

The founding act of the Conference for Security and Cooperation in Europe included under its principles:
“VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief”

Recognition of CO

Recognised

Length/terms of service

Recognised

Discrimination

Recognised

Time limits

Recognised

in-service objection

Recognised

Selective objection

Recognised

Repeated punishment

Recognised

CO to military taxation

Recognised

Interpretations

Chapter 10 of the Handbook deals with conscientious objection to military service in detail. It summarises the following best practices and recommendations:
• Information should be made available to all persons affected by military service about the right to conscientious objection to military service, and the means of acquiring conscientious-objector status;
• Conscientious objection should be available both for conscripts and for professional soldiers both prior to and during military service, in line with the recommendations of international bodies;
• Where a state does not accept a statement of conscientious objection at face value, there should be independent review panels (or where not independent, adequate procedural safeguards should be in place);
• Conscientious objectors should not be subject to repeated punishment for failure to perform military service;
• There should be no discrimination against conscientious objectors in relation to their terms or conditions of service, or any economic, social, cultural, civil, or political rights;
• Alternative service should be compatible with the reasons for the conscientious objection, of a non-combatant or civilian nature, in the public interest and not punitive;
• Alternative service should be performed under a purely civilian administration, with no involvement by the military authority;
• Those performing alternative service should enjoy the same economic and social rights as those undergoing military service;
• The duration of alternative service should be no more than 1 1/2 times the length of military service.

Prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in Consultation with the European Commission for Democracy through Law (VENICE COMMISSION)

“Conscientious objection to military service.
Although there is no controlling international standard on this issue, the clear trend in most democratic States is to allow those with serious moral or religious objections to military service to perform alternative (non-military) service. In any case, State laws should not be unduly punitive for those who cannot serve in the military for reasons of conscience”.

“Following-up to discussions during the Supplementary Human Dimension Meeting recommendations by many participants included the following:
(...)
The OSCE/ODIHR Panel of Experts on Freedom of Religion or Belief is encouraged to continue its work related to study, analysis and dissemination of information, in particular regarding registration requirements for religious communities and conscientious objection to military service. Participating States which had not yet done so should be encouraged by the OSCE to enact the necessary legislation to honor the commitments made in the Copenhagen Document regarding conscientious objection.”

Paragraph 18 of the Document of the Copenhagen meeting of the Conference on the Human Dimension, 5-29 June 1990:
“(18) The participating States
(18.1) note that the United Nations Commission on Human Rights has recognized the right of everyone to have conscientious objections to military service;
(18.2) note recent measures taken by a number of participating States to permit exemption from compulsory military service on the basis of conscientious objections;
(18.3) note the activities of several non-governmental organisations on the question of conscientious objections to compulsory military service;
(18.4) agree to consider introducing, where this has not yet been done, various forms of alternative service, which are compatible with the reasons for conscientious objection, such forms of alternative service being in principle of a non-combatant or civilian nature, in the public interest and of a non-punitive nature;
(18.5) will make available to the public information on this issue;
(18.6) will keep under consideration, within the framework of the Conference on the Human Dimension, the relevant questions related to the exemption from compulsory military service, where it exists, of individuals on the basis of conscientious objections to armed service, and will exchange information on these questions”.

A Conscientious Objector's Guide to the International Human Rights System

Council of Europe: Commissioner for Human Rights

Summary

The post of the Commissioner for Human Rights of the Council of Europe was created by a resolution of the Committee of Ministers of the Council of Europe on 7 May 1999.
According to the mandate, the Commissioner for Human Rights, shall, besides promoting human rights, and supporting human rights education, “identify possible shortcomings in the law and practice of member States concerning the compliance with human rights as embodied in the instruments of the Council of Europe, promote the effective implementation of these standards by member States and assist them, with their agreement, in their efforts to remedy such shortcomings”.
As part of the mandate, the Commissioner carries out visits to all member states of the Council of Europe to monitor and evaluate the human rights situation.
While according to article 1 (2) of the mandate “the Commissioner shall not take up individual complaints”, he or she can draw conclusions from human rights violations in individual cases. Part of the mandate of the Commissioner for Human Rights is to engage with Human Rights Defenders in the member states of the Council of Europe, and to meet with a broad range of defenders during his or her country visits and to report publicly on the situation of human rights defenders.
The Commissioner for Human Rights publishes opinions, reports on country visits, thematic reports, and annual reports regarding the situation of human rights in the member states of the Council of Europe.

1. Likely result from the use of this mechanism

The Commissioner for Human Rights can take up information on the violation of human rights during a country visit, or when drafting a country report. Human rights violations can also be taken up in a thematic report, e.g. on freedom of expression.

3. Who can submit information?

The Commissioner for Human Rights can receive information from anyone, but especially from human rights NGOs and from human rights defenders.

4. When to submit information?

Information can be submitted at any time. However, it is advisable to check the agenda of the Commissioner for Human Rights, and to submit information prior to a scheduled country visit, possibly at the same time requesting a meeting during the Commissioner's visit.

5. Special rules of procedure of advice for making a submission?

There are no special rules for making a submission.

It is advisable to refer to the relevant human rights instruments of the Council of Europe applicable to the State concerned when making a submission. As the mandate of the Commissioner for Human Rights does not include individual complaints, individual cases of human rights violations should mainly be used as examples to highlight patterns of human rights violations.

Following-up

If the Commissioner for Human Rights has taken up the issue of conscientious objection, and has made recommendations, it is important to provide information on the implementation of the recommendations made to the Commissioner. The Commissioner publishes follow-up reports to country visits a few years after a country visit, and it is highly recommended to use this opportunity to highlight non-compliance with recommendations.

Legal Bases

With Resolution (99) 50, the Committee of Ministers institutes the Council of Europe Commissioner of Human Rights as a “non-judicial institution to promote education in, awareness of and respect for human rights, as embodied in the human rights instruments of the Council of Europe.”

Article 9 of the European Convention guarantees the right to freedom of thought, conscience and religion. It reads:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 1 paragraph 2 of the European Social Charter guarantees “the right of the worker to earn his living in an occupation freely entered upon”. A substitute service that is substantially longer than military service is considered a “disproportionate restriction” of this right.

Article 1 paragraph 2 of the European Social Charter guarantees “the right of the worker to earn his living in an occupation freely entered upon”. A substitute service that is substantially longer than military service is considered a “disproportionate restriction” of this right.

Length/terms of service

Recognised

Interpretations

"H. Members of the armed forces have the right to freedom of thought, conscience and religion. Any limitations on this right shall comply with the requirements of Article 9, paragraph 2 of the European Convention on Human Rights.
40. Members of the armed forces have the right to freedom of thought, conscience and religion, including the right to change religion or belief at any time. Specific limitations may be placed on the exercise of this right within the constraints of military life. Any restriction should however comply with the requirements of Article 9, paragraph 2, of the Convention. There should be no discrimination between members of the armed forces on the basis of their religion or belief.
41. For the purposes of compulsory military service, conscripts should have the right to be granted conscientious objector status and an alternative service of a civilian nature should be proposed to them.
42. Professional members of the armed forces should be able to leave the armed forces for reasons of conscience.
43. Requests by members of the armed forces to leave the armed forces for reasons of conscience should be examined within a reasonable time. Pending the examination of their requests they should be transferred to non-combat duties, where possible.
44. Any request to leave the armed forces for reasons of conscience should ultimately, where denied, be examined by an independent and impartial body.
45. Members of the armed forces having legally left the armed forces for reasons of conscience should not be subject to discrimination or to any criminal prosecution. No discrimination or prosecution should result from asking to leave the armed forces for reasons of conscience.
46. Members of the armed forces should be informed of the rights mentioned in paragraphs 41 to 45 above and the procedures available to exercise them."

“The Assembly accordingly recommends that the Committee of Ministers invite those member states that have not yet done so to introduce into their legislation:
i. the right to be registered as a conscientious objector at any time: before, during or after conscription, or performance of military service;
ii. the right for permanent members of the armed forces to apply for the granting of conscientious objector status;
iii. the right for all conscripts to receive information on conscientious objector status and the means of obtaining it;
iv. genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.”

“1. Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service; (…)
8. The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service; (...)
10. Alternative service shall not be of a punitive nature. Its duration shall, in comparison to that of military service, remain within reasonable limits;
11. Conscientious objectors performing alternative service shall not have less social and financial rights than persons performing military service. Legislative provisions or regulations which relate to the taking into account of military service for employment, career or pension purposes shall apply to alternative service."

The Assembly,(...)
4. Recommends that the Committee of Ministers:
a. urge the governments of member states, in so far as they have not already done so, to bring their legislation into line with the principles adopted by the Assembly ;
b. introduce the right of conscientious objection to military service into the European Convention on Human Rights.

The Assembly,
1. Having regard to its Resolution 337 on the right of conscientious objection,
2. Recommends the Committee of Ministers:
(a) to instruct the Committee of Experts on Human Rights to formulate proposals to give effect to the principles laid down by the Assembly in its Resolution 337 by means of a Convention or a recommendation to Governments so that the right of conscientious objection may be firmly implanted in all member States of the Council of Europe ;
(b) to invite member States to bring their national legislation as closely as possible into line with the principles adopted by the Consultative Assembly.

“1.2 Visits. Visit to Armenia. (…) Regarding the right to conscientious objection, the Commissioner emphasised the urgent need to develop a genuinely civilian service option in Armenia, and recom­mended the release of all conscientious objectors imprisoned because of non-performance of military service.”
CommDH(2012)1

“3. Reports and continuous dialogue. Report on Armenia. (…) Regarding the right to conscientious objection, the Commissioner found that there was an urgent need to develop a genuinely civilian service option in Armenia and that all conscientious objectors who are in prison because of non-performance of military service should be released.”
CommDH(2011)28

“19. As regards cases concerning convictions for having published statements which were considered to incite abstention from com­pulsory military service, six judgments of the Court against Turkey await execution. Pursuant to Article 318 of the Criminal Code, the non-violent expression of opinions on conscientious objection is still a criminal offence, similar to the former Article 155 which gave rise to these judgments. The Court held that the fact that an article on conscientious objection was published in a newspaper was an indica­tion that it could not be considered as incitement to immediate desertion. This is in contradiction with Article 318, paragraph 2 of the Criminal Code, according to which the publication itself is an aggravating circumstance. The Commissioner is concerned by the fact that the above provision continues to be applied. He has been informed that in June 2010 four persons were sentenced by an Ankara court to imprisonment ranging from 6 to 18 months for having issued a press release in favour of a conscientious objector, Enver Aydemir.”
CommDH(2011)25

“The issue of imprisoned conscientious objectors – currently, all of whom are members of the Jehovah’s Witnesses community - has been on the table for many years. Conscientious objectors are not willing to perform an alternative service option which is under the supervision of the military. There is still no alternative to military service available in Armenia which can be qualified as genuinely civilian in nature. The Commissioner strongly believes that conscientious objectors should not be imprisoned and urges the authorities to put in place an alternative civilian service.“
CommDH(2011)12

“B. Conscientious objection to military service
81. One of the commitments of Azerbaijan upon accession to the Council of Europe in 2001 was to establish an alternative to military service by 2004. To this day, such a legislative framework has not yet been shaped up. A draft law concerning an alternative to the military service was sent for review to the Council of Europe and was sent back to the authorities more than a year ago on 23 October 2006. Obviously, the general atmosphere in the wider region, a recent past of wars and atrocities and ongoing tensions with some neighbours have had the consequence that the issue has not received the treatment it deserves. The Commissioner urges a speedy adoption of a law establishing an alternative civilian service.“
CommDH(2008)2

“39. The Commissioner is pleased to note that the conditions of the alternative service offered to conscientious objectors in Greece have significantly improved since his visit in 2002 with the adoption of new legislation in 2004, especially as regards the length of such service. It can, however, still be subject to discussion whether an alternative service which lasts almost twice as long as the regular armed service has a punitive character or is genuinely equivalent to military service in terms of hardship and constraints. The Commissioner recommends that the Greek authorities grant conscientious objector status to persons who have already performed a military service in another country if they had no realistic possibility to refuse it or when their experience has been traumatic.”
CommDH(2006)13

“75. Compulsory military service for Cypriot men lasts 25 months. A new bill on conscientious objection was tabled in Parliament by the Government on 1 July 2005. The Bill foresees the reduction in the length of service for non-armed service in uniform within army precincts from 34 months to 33 months. For non-armed service without a uniform and outside army precincts, the Bill foresees a reduction from 42 to 38 months.”
CommDH(2006)12

“40. The term of military service is normally 26 months. Defence Act 2/92 of January 1992 recognises conscientious objection on ethical, moral, humanitarian, philosophical, political or religious grounds. However, the alternative service offered is a very long period of non-armed service; it is for either 34 months to be undergone in uniform within army precincts or for 42 months without a uniform and outside army precincts. These regulations do not correspond to the standards of the Council of Europe. (...)
CONCLUSIONS AND RECOMMENDATIONS
76. (…) - To modify the legal arrangements concerning conscientious objection and alternative service in accordance with the Recommen­dations of the Committee of Ministers in the matter; in particular, to alter the practice whereby the medical reasons for granting exemp­tion from the obligation to perform military service are recorded on the certificate of exemption”.
CommDH(2004)2

“C. Conscientious objectors
17. Another issue concerns conscientious objectors. The many improvements made for some time past are certainly to be welcomed, particularly the implementation of law 2510/1977 and the recognition, in the revised Constitution, of a right to conscientious objection (Interpretative Resolution of 6 April 2001 on Article 4.6 of the Constitution); this development cannot be unrelated to the Tsirlis and Kouloumpas judgments by the European Court of Human Rights. It is nevertheless appropriate to recall Recommendation (87) 8 of the Committee of Ministers on conscientious objection to compulsory military service. I understand that since the right to conscientious objection received constitutional recognition, the reservation entered by Greece concerning this Recommendation has become void and I recall that the Recommendation stipulates inter alia that alternative service shall not be of punitive nature and that its duration shall remain within reasonable limits by comparison with military service. I find, though, that an extra term of 18 months as currently prescribed in Greece constitutes a disproportionate measure in practice, especially in the light of my information that this alternative service is often performed in a hostile atmosphere. It would be advisable to reduce the duration of alternative service to an equitable term by comparison with military service and work along the lines of recommendations from the Greek Ombudsman in order to rectify the disproportionate character of the present legislation.
18. I was informed by the counsel for the accused of the case of seven Jehovah’ s Witnesses liable to receive prison sentences on account of administrative errors, which they allegedly were not allowed to remedy subsequently, in drawing up their conscientious objector’s papers. Likewise, I was informed of criminal proceedings pending against a conscientious objector liable to a prison sentence of several years for insubordination.
In general, a custodial sentence for technical defects seems disproportionate to me. In this connection, transfer of administrative responsibilities as regards granting conscientious objector status from the Ministry of Defence to an independent civilian department would doubtless be a step in the right direction.”
CommDH(2002)5

A Conscientious Objector's Guide to the International Human Rights System

European Court of Human Rights

Summary

The European Court of Human Rights in Strasbourg is an international human rights court charged with dealing with individual complaints in relation to alleged violations of the European Convention on Human Rights.
Before submitting a complaint to the European Court of Human Rights, domestic remedies have to be exhausted, unless these would be unreasonably prolonged or not effective. The complaint should also not have been submitted to any other procedure of international investigation or settlement.
If a complaint is declared admissible, and the Court decides on the merits of the case, it will either find there has been a violation of specific articles of the European Convention or not. In a case where the Court finds a violation of the Convention, it will usually also award compensation.
Decisions by the European Court of Human Rights are legally binding on the State concerned.

1. Likely results from use of mechanism

The European Court of Human Rights will first take a decision of the admissibility of a complaint, depending on its admissibility criteria. Should the Court find that a complaint is admissible, it will issue a judgment on the merits of the case, either finding that there was a violation of the European Convention on Human Rights, and usually awarding compensation, or finding that there has not been a violation of the Convention.
Following a judgment against a State, the Committee of Ministers of the Council of Europe will monitor the implementation of the judgment by the State concerned.

Urgent action

The Court may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the Convention. Interim measures are urgent measures which, in accordance with the established practice of the Court, apply only where there is an imminent risk of irreparable damage. Interim measures are applied only in limited situations: the most typical cases are ones in which there are fears of a threat to life (situation falling under Article 2 of the Convention) or ill-treatment prohibited by Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment).
More information on interim measures is included in a practical guide published by the European Court, available at http://www.echr.coe.int/NR/rdonlyres/5F40172B-450F-4107-9514-69D6CBDECF5....

2. To which States does the mechanism apply?

The European Convention on Human Rights applies to all 47 member States of the Council of Europe. The rights set out in the Convention have to be guaranteed not only to their own citizens but also to everybody in their jurisdiction. A list of member States of the Council of Europe is available at http://www.coe.int/aboutCoe/index.asp?page=47pays1europe&l=en.

3. Who can submit information?

A complaint (called an “application”) can only be submitted by the victim(s) of alleged human rights violations or their legal representatives. However, NGOs or legal entities can also be the victims of human rights violations (for example in the case of freedom of association).

4. When to submit information?

Before submitting a complaint to the European Court of Human Rights, all domestic remedies need to be exhausted. This means that all appeals to courts available in a country need to have been exhausted, including – if possible – an appeal to the Constitutional or Supreme Court. In these appeals, the substance of the violations of the European Convention (not the Convention itself) needs to have been raised.
An application to the European Court of Human Rights needs to be made within six months from the date of the final decision at domestic level (generally the judgment of the highest court). After this time limit an application cannot be accepted by the Court.

an indication which of your rights under the European Convention have been violated;

the domestic remedies you have used;

copies of the decisions given in your case by all the public authorities concerned; and

your signature as the applicant, or the signature of your legal representative, plus a form authorising your representative and signed by you.

For an application to be admissible, it is important that:

the application is made by the victim(s) or their legal representatives;

the alleged violation has not previously been under investigation by another international settlement procedure, which – in the case of the European Court – are the United Nations Human Rights Committee (individual complaint procedure), the Committee on Freedom of Association of the International Labour Organisation, and the United Nations Working Group on Arbitrary Detention.

The victim has to have suffered a “significant disadvantage” as a consequence of the violation of his or her human rights.

Applications should be sent by registered post to:
The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex.

An application can be sent by fax first, but should also be sent by post.

While the initial application can be made in any official language of any member State of the Council of Europe, any follow-up communication with the European Court after the Court has given notice to the Government concerned for their observations has to be in one of the official languages of the Court, which are English and French.

As soon as the Court has given notice to the Government for their observations, however, the presence of a lawyer is required.

6. What happens to the submission (how long will it take)?

Following the submission of an application to the European Court, first a single judge will screen the application. If the single judge finds that the application is inadmissible, and no further examination is needed, he or she can decide so. The applicant will be notified by letter. The great majority of cases are declared inadmissible by a single judge.
If the single judge does not find the application inadmissible, he or she will forward it to a Committee or to a Chamber for further examination.
A committee of three judges can also find an application inadmissible at any stage of the proceedings. If the case is well covered by case law of the European Court, and no further examination is required, the committee can also find the application admissible and render a judgment on the merits of the case. In both cases, a decision of the committee has to be unanimous.
Decisions by a single judge or by a committee of three judges are final.

Only cases that are not obviously inadmissible will be communicated to the Government of the State concerned. From that time on it is obligatory to be represented by a lawyer.

Usually, the procedure before the European Court of Human Rights is in writing only. Once a chamber has declared an application admissible, the President of the Chamber may invite the parties to the case to submit further written observations and evidence. Both parties will usually given the same time to submit information. While it is possible to request an oral hearing, a decision on this will be taken by the Chamber.

The European Court of Human Rights introduced a new “pilot judgment procedure” in cases that reveal structural or systemic problems in a country party to the European Convention, and where the Court received a number of similar applications. If a case is selected for the pilot judgment procedure, it is dealt with as a matter of priority, while the remaining cases are on hold (more information is available in Rule 61).

Where the Chamber finds that there has been a violation of one of the rights protected by the European Convention of Human Rights, the Chamber may also take a decision on “just satisfaction” (the payment of compensation to the victim), if an application has been made.

What happens after the judgement?

The Court transmits the judgement to the Committee of Minister of the Council of Europe which confers with the country how to execute the judgement. As a consequence of the supervision of the Committee, amendments to legislation are usually made.

Referral to the Grand Chamber

Both, the State concerned and the applicant can request a referral of the case to the Grand Chamber of the European Court within three months of a Chamber judgment. It is important to highlight in such an application the serious questions relating to the interpretation of the European Convention, or the serious issue of general importance.
A panel of five judges of the Grand Chamber will examine the request solely on the basis of the case file, and either accept or refuse it. It does not need to give reasons for the refusal of the request.
Should the request be granted, the Grand Chamber will decide the case by means of a judgment.

How long does it take?

The European Court of Human Rights has a huge backlog of cases. Even the first stage – the decision on admissibility – can take well over one year, and a decision on the merits of a case will take considerably longer. Even though the Court aims to decide on important cases within three years, it is highly likely that it will take five years of more.

7. History of the use of the mechanism

The European Court of Human Rights and the former European Commission of Human Rights (abolished in 1998) have been used in a range of cases related to conscientious objection to military service and to military taxation – with mixed success.
As late as in 2011, the Grand Chamber of the European Court of Human Rights overturned the jurisprudence of the former European Commission of Human Rights, and recognised that the right to conscientious objection to military service is protected under article 9 of the European Convention (Bayatyan v. Armenia, 23459/03). Since then, the European Court has consolidated its jurisprudence with more cases from Armenia and Turkey.
Previously, the European Court had not evaluated cases brought by conscientious objectors under article 9 of the Convention. In its judgment in the case of Turkish conscientious objector Osman Murat Ülke, the Court ruled that the repeated imprisonment amounted to a “civil death”, and therefore to a violation of article 3 of the European Convention (prohibition of inhuman and degrading treatment).
Several cases of total objectors refusing substitute service were declared inadmissible by the former European Commission of Human Rights (see Johansen v. Norway (10600/83)), as were cases complaining about the punitive length of substitute service (see Tomi Autio v. Finland (17086/90)). On the latter question, the jurisprudence of the former European Commission of Human Rights is very different to the one of the United Nations Human Rights Committee (see Foin v. France, 1999).

Legal Bases

Article 9 of the European Convention guarantees the right to freedom of thought, conscience and religion. It reads:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Recognition of CO

Recognised

Length/terms of service

Recognised

Discrimination

Recognised

Time limits

Recognised

in-service objection

Recognised

Selective objection

Recognised

Repeated punishment

Recognised

CO to military taxation

Recognised

Interpretations

"H. Members of the armed forces have the right to freedom of thought, conscience and religion. Any limitations on this right shall comply with the requirements of Article 9, paragraph 2 of the European Convention on Human Rights.
40. Members of the armed forces have the right to freedom of thought, conscience and religion, including the right to change religion or belief at any time. Specific limitations may be placed on the exercise of this right within the constraints of military life. Any restriction should however comply with the requirements of Article 9, paragraph 2, of the Convention. There should be no discrimination between members of the armed forces on the basis of their religion or belief.
41. For the purposes of compulsory military service, conscripts should have the right to be granted conscientious objector status and an alternative service of a civilian nature should be proposed to them.
42. Professional members of the armed forces should be able to leave the armed forces for reasons of conscience.
43. Requests by members of the armed forces to leave the armed forces for reasons of conscience should be examined within a reasonable time. Pending the examination of their requests they should be transferred to non-combat duties, where possible.
44. Any request to leave the armed forces for reasons of conscience should ultimately, where denied, be examined by an independent and impartial body.
45. Members of the armed forces having legally left the armed forces for reasons of conscience should not be subject to discrimination or to any criminal prosecution. No discrimination or prosecution should result from asking to leave the armed forces for reasons of conscience.
46. Members of the armed forces should be informed of the rights mentioned in paragraphs 41 to 45 above and the procedures available to exercise them."

“The Assembly accordingly recommends that the Committee of Ministers invite those member states that have not yet done so to introduce into their legislation:
i. the right to be registered as a conscientious objector at any time: before, during or after conscription, or performance of military service;
ii. the right for permanent members of the armed forces to apply for the granting of conscientious objector status;
iii. the right for all conscripts to receive information on conscientious objector status and the means of obtaining it;
iv. genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.”

“1. Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service; (…)
8. The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service; (...)
10. Alternative service shall not be of a punitive nature. Its duration shall, in comparison to that of military service, remain within reasonable limits;
11. Conscientious objectors performing alternative service shall not have less social and financial rights than persons performing military service. Legislative provisions or regulations which relate to the taking into account of military service for employment, career or pension purposes shall apply to alternative service."

The Assembly,(...)
4. Recommends that the Committee of Ministers:
a. urge the governments of member states, in so far as they have not already done so, to bring their legislation into line with the principles adopted by the Assembly ;
b. introduce the right of conscientious objection to military service into the European Convention on Human Rights.

The Assembly,
1. Having regard to its Resolution 337 on the right of conscientious objection,
2. Recommends the Committee of Ministers:
(a) to instruct the Committee of Experts on Human Rights to formulate proposals to give effect to the principles laid down by the Assembly in its Resolution 337 by means of a Convention or a recommendation to Governments so that the right of conscientious objection may be firmly implanted in all member States of the Council of Europe ;
(b) to invite member States to bring their national legislation as closely as possible into line with the principles adopted by the Consultative Assembly.

The case concerned the failure to recognise the right to conscientious objection in Turkey. The Court reiterated that the system of compulsory military service allowed for no exceptions on grounds of conscience and resulted in heavy criminal sanctions being imposed on those who refused to comply. It failed to strike a proper balance between the general interest of society and that of conscientious objectors. The penalties, sanctions, convictions and prosecutions imposed on conscientious objectors, when no measures were provided to take account of the requirements of their consciences and convictions, could not be regarded as necessary in a democratic society.
Violations of Articles 3 and 9 of the Convention.

The case concerned the failure to recognise the right to conscientious objection in Turkey. The Court reiterated that the system of compulsory military service allowed for no exceptions on grounds of conscience and resulted in heavy criminal sanctions being imposed on those who refused to comply. It failed to strike a proper balance between the general interest of society and that of conscientious objectors. The penalties, sanctions, convictions and prosecutions imposed on conscientious objectors, when no measures were provided to take account of the requirements of their consciences and convictions, could not be regarded as necessary in a democratic society.
Violations of Articles 3 and 9 and a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the military court.

The objections of the applicant, a Jehovah’s Witness, to serving in the armed forces had been motivated by genuinely held religious beliefs that had been in serious and insurmountable conflict with his obligation to perform military service. There had been interference with the applicant’s right to manifest his religion or beliefs, stemming from his multiple criminal convictions and from the failure to propose any form of alternative civilian service. It was apparent that the system of compulsory military service in force in Turkey did not strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, in circumstances where no allowances had been made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society. Lastly, the fact that the applicant had been demobilised did nothing to alter the findings outlined above. Although he faced no further risk of prosecution (in theory, he could have faced proceedings for the rest of his life), he had been demobilised only because of the onset during his military service of a psychological disorder. This further demonstrated the seriousness of the interference complained of.
Violation of articles 3, 6 para 1, and 9.

The applicant is a Jehovah’s Witness. From 1997 he attended various Jehovah’s Witnesses religious services.(...)
The Court notes that it has already examined a similar complaint in the case of Bayatyan v. Armenia and concluded that the imposition of a penalty on the applicant, in circumstances where no allowances were made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society (see Bayatyan, cited above, §§ 124-125). In the present case, the applicant was similarly a member of Jehovah’s Witnesses who sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions and the only reason why he was not able to do so and incurred criminal sanctions was the absence of such an opportunity.

The applicant is a Jehovah’s Witness. From 1993 he attended various Jehovah’s Witnesses religious services and was baptised on 26 June 1994 at the age of 13. (…)
In September 1998, when the applicant turned 18, he advised the military commissariat by letter that he refused to serve in the military because of his religious beliefs. At that time, he also left home being afraid that he would be taken to the military by force.(...)
The Court notes that it has already examined a similar complaint in the case of Bayatyan v. Armenia and concluded that the imposition of a penalty on the applicant, in circumstances where no allowances were made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society (see Bayatyan, cited above, §§ 124-125). In the present case, the applicant was similarly a member of Jehovah’s Witnesses who sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions and the only reason why he was not able to do so and incurred criminal sanctions was the absence of such an opportunity.

The applicant was a member of the Jehovah’s Witnesses, a religious group whose beliefs included opposition to military service, irrespective of any requirement to carry weapons. The applicant’s objections had therefore been motivated by genuinely held religious beliefs which were in serious and insurmountable conflict with his obligations in that regard. The system of compulsory military service applicable in Turkey imposed obligations on citizens that were liable to have serious consequences for conscientious objectors. It made no provision for exemption on grounds of conscience and resulted in heavy criminal penalties for persons who, like the applicant, refused to perform their military service. Hence, the interference complained of stemmed not just from the fact that the applicant had been convicted on numerous occasions, but also from the absence of any alternative form of service. Conscientious objectors had no option but to refuse to enrol in the army if they wished to remain true to their beliefs. In doing so they laid themselves open to a kind of “civil death” because of the numerous prosecutions which the authorities invariably brought against them and the cumulative effects of the resulting criminal convictions, the continuing cycle of prosecutions and prison sentences and the possibility of facing prosecution for the rest of their lives. Such a system failed to strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, without any allowances being made for the dictates of his conscience and beliefs, could not be regarded as a measure necessary in a democratic society.
Conclusion: violation (unanimously).

A Jehovah’s Witness, Mr Bayatyan refused to perform military service for conscientious reasons when he became eligible for the draft in 2001, but was prepared to do alternative civil service. The authorities informed him that since there was no law in Armenia on alternative service, he was obliged to serve in the army. He was convicted of draft evasion and sentenced to prison. Mr Bayatyan complained that his conviction violated his rights under Article 9 and submitted that the Article should be interpreted in the light of present-day conditions, namely the fact that the majority of Council of Europe Member States had recognised the right of conscientious objection.

The Court found a violation of Article 9, taking into account that there existed effective alternatives capable of accommodating the competing interests involved in the overwhelming majority of European States and that Mr Bayatyan’s conviction had happened at a time when Armenia had already pledged to introduce alternative service.

Mr Ülke refused to do his military service, on the ground that he had firm pacifist beliefs, and publicly burned his call-up papers at a press conference. He was initially convicted of inciting conscripts to evade military service and, having been transferred to a military regiment, repeatedly convicted for his refusals to wear a military uniform. He served almost two years in prison and later hid from the authorities.
The Court found a violation of Article 3 (prohibition of inhuman and degrading treatment), holding in particular that the applicable legal framework did not provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one’s beliefs. Because of the nature of the legislation Mr Ülke ran the risk of an interminable series of prosecutions and criminal convictions. The constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service.

The case was struck of the list after a friendly settlement reached between Mr Stefanov and the Government of Bulgaria, which included that “all criminal proceedings and judicial sentences in Bulgaria of Bulgaria citizens since 1991 (especially but not limited to [Mr I. S. and three other applicants in other cases]) for refusing military service by virtue of their individual conscientious objection but who were willing at the same time to perform alternative civilian service shall be dismissed and all penalties and/or disabilities heretofore imposed in these cases shall be eliminated as if there was never a conviction for a violation of the law, thus the Council of Ministers of the Republic of Bulgaria undertakes the responsibility to introduce draft legislation before the National Assembly for a total amnesty for these cases”.

A Jehovah’s Witness, Mr Thlimmenos was convicted of a felony offence for having refused to enlist in the army at a time when Greece did not offer alternative service to conscientious objectors to military service. A few years later he was refused appointment as a chartered accountant on the grounds of his conviction despite his having scored very well in a public competition for the position in question.
The Court found a violation of Article 14 in conjunction with Article 9, holding that Mr Thlimmenos’ exclusion from the profession of chartered accountant was disproportionate to the aim of ensuring appropriate punishment of persons who refuse to serve their country, as he had already served a prison sentence for this offence.

A Conscientious Objector's Guide to the International Human Rights System

European Committee of Social Rights: State reporting procedure

Summary

The European Committee of Social Rights (ECSR) is a treaty-based mechanism where a group of 15 human rights experts examines annual reports of States Parties to the European Social Charter. The European Social Charter is a Council of Europe treaty (adopted in 1961 and revised in 1996) which guarantees rights such as non-discrimination. The European Social Charter does not protect the right to conscientious objection, and is therefore irrelevant to the question of recognition of the right to conscientious objection to military service. However, it can be relevant in cases of a punitive substitute civilian service in countries where conscientious objection is recognised.
The Committee determines whether or not national law and practice in the States Parties are in conformity with the Charter and renders so-called conclusions for national reports.

1. Likely result from the use of mechanism

The European Committee of Social Rights evaluates the report of States Parties to the European Social Charter of 1961, the 1998 Additional Protocol to the European Social Charter, or the revised European Social Charter from 1995. Following a decision by the Council of Europe's Committee of Ministers in 2006, under the current reporting system the provisions of both the 1961 European Social Charter and the 1996 Revised European Social Charter have been divided into four thematic groups: “Employment, training and equal opportunities” (which includes article 1 para 2, mostly relevant for substitute service of conscientious objectors), “Health, social security and social protection”, “Labour rights”, “Children, families, migrants”. States present a report on the provisions relating to one of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once very four years. A calendar of reporting cycles is available at http://www.coe.int/t/dghl/monitoring/socialcharter/ReportCalendar/Calend....

The European Committee of Social Rights evaluates a State's report in light of the relevant provisions of the European Social Charter, and publishes its evaluations and conclusions in a report, which is made available at the end of the reporting cycle on the website of the European Committee of Social Rights (see http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Conclusio...).

2. To which States does this mechanism apply

The mechanism applies to States that have ratified one of the relevant revisions of the European Social Charter, plus possibly additional protocols:

3. Who can submit information?

International NGOs with participatory status of the Council of Europe and national trade unions can submit information to the European Committee of Social Rights.
The procedure for obtaining participatory status is set out in Council of Europe Committee of Ministers resolution Res(2003)8 (see http://www.coe.int/t/ngo/Articles/Resolution_2003_8_en.asp).
In addition, States Parties are requested to forward a copy of their report to national organisations that are members of the international organisations of employers and trade unions invited, under Article 27, paragraph 2, to be represented at meetings of the Governmental Committee.

4. When to submit information?

It is advisable to submit information after submission of a State's report.

5. Special rules of procedure or advice for making a submission?

Since 2006, reporting has been split into four thematic areas. It is important that a submission refers to the report of the State in question, and is limited to the provisions of the European Social Charter which are being addressed in the relevant reporting cycle.
States are required to submit their reports by 31 October of each year, and the European Committee for Social Rights is supposed to publish its conclusions by the end of the following year.

6. What happens to a submission (how long will it take)?

The European Committee of Social Rights will designate a Rapporteur following the submission of a State's report, whose task it is to prepare for the examination of a State's report.
As part of the reporting procedure, the Committee of Social Rights or a sub-committee set up to do so might organise a meeting with representatives of the State concerned, to which international organisations and international trade unions may be invited, as well as – if the State concerned agrees – representatives of national trade unions of the State concerned. The Executive Secretary will then draft provisional conclusions.
Following the session, the European Committee of Social Rights will adopt its conclusions at the end of each supervision cycle.

If a state takes no action on a Committee decision to the effect that it does not comply with the Charter, the Council of Europe's Committee of Ministers addresses a recommendation to that state, asking it to change the situation in law and/or in practice.

7. History of the use of this mechanism

The authors are not aware that conscientious objector organisations or human rights NGOs have raised the issue of a punitive substitute service within the state reporting procedure of the European Committee of Social Rights. Nevertheless, the ECSR has addressed the issue in several reports, based on article 1 para 2 of the European Social Charter – The right to work, or more specifically the commitment “to protect effectively the right of the worker to earn his living in an occupation freely entered upon”. The ECSR sees a punitive length of substitute service as a “disproportionate restriction on 'the right of the worker to earn his living in an occupation freely entered upon'”, and therefore as a violation of article 1 para 2 of the European Social Charter.

Contact Details:

Secretariat of the European Social Charter
Council of Europe
Directorate general of Human Rights and Legal Affairs
Directorate of Monitoring
F-67075 Strasbourg Cedex
Tel. +33-3-88 41 32 58
Fax. +33-3-88 41 37 00

Legal Bases

Article 1 paragraph 2 of the European Social Charter guarantees “the right of the worker to earn his living in an occupation freely entered upon”. A substitute service that is substantially longer than military service is considered a “disproportionate restriction” of this right.

Article 1 paragraph 2 of the European Social Charter guarantees “the right of the worker to earn his living in an occupation freely entered upon”. A substitute service that is substantially longer than military service is considered a “disproportionate restriction” of this right.

“Service required to replace military service
In its last two conclusions (Conclusions XVI-1 and Conclusions 2004), the Committee maintained that that the duration of the service that replaced compulsory military service, generally twice the length of the military service itself, was excessive. The report contains no information on this point. The Committee therefore considers that the situation is unchanged and is still not in conformity with the Revised Charter.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if states acknowledge the principle of conscientious objection and institute alternative service instead, they cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty.”

“Service required to replace military service
The Committee notes from the report that there have been no changes in the situation it previously considered unsatisfactory, and that the Government has no intention of changing it. Military service lasts 8 months. However it is extended to 11 months for non-commissioned officers, specialists and those undertaking reserve officer training. Alternative military service lasts 16 months.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alternative service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty.
Under Article 1§2 of the Charter, alternative service may not exceed one and a half times the length of armed military service. Since alternative service may last up to twice the length of military service, the situation in Estonia is not compatible with the Revised Charter.”

“Service required to replace military service
Under the Military Service Act the length of military service is 180, 270 or 362 days. The duration of unarmed military ser­vice is 330 days and of alternative civilian service 395 days.
In its previous conclusion (Conclusions XVII-1), the Com­mittee found that the situation was not compatible with the Revised Charter on the grounds that the length of alterna­tive service was more than double the length of compulsory service performed by the majority of conscripts, since at that time 64.2% of conscripts performed 180 days of military service. In its previous conclusion (Conclusions 2006), it noted that the majority of conscripts (52.3%) served at least 270 days and 47.7% served 180 days. The Committee found that the situation had altered, but only slightly, and that the length of civilian service remained more than double the minimum period of military service undertaken by almost half of all conscripts.
It now notes from the report that there have been no changes in the situation it previously considered not to be in conformity. It therefore finds that the length of alternative civilian service remains a disproportionate restriction on workers' right to earn a living in an occupation freely ente­red upon. Admittedly, recognised conscientious objectors are in a better position than they would be in countries that do not grant them special status and where refusal to serve is punishable by imprisonment. But even if the state ack­now­ledges the principle of conscientious objection and in­sti­tutes a replacement service, it cannot make the replace­ment service longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine, in order to avoid the replacement service being chosen as the most advantageous solution rather than felt as a constraint.”

”Length of service required to replace military service
The Committee would emphasise that the length of service carried out to replace military service (alternative service), during which those concerned are denied the right to earn their living in an occupation freely entered upon, must be reasonable (Quaker Council for European Affairs (QCEA) v. Greece, complaint No. 8/2000, decision on the merits of 25 April 2001, §§23-25). The Committee assesses whether the length of alternative service is reasonable by comparing it with the length of military service. For example, where the length of alternative service is over one-and-a-half times that of military service, it considers the situation to be incompatible with Article 1§2 (Conclusions 2006, Estonia).
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alterna­tive service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of con­science is genuine and the choice of alternative service is not seen as advantageous rather than a duty. The Committee notes that in Georgia compulsory military service lasts 18 months and alternative service is the same length for citi­zens with a higher education and 24 months for all others.”

“Service required to replace military service
The situation concerning alternative military service has changed significantly since the decision on the merits of 25 April 2001 in collective complaint No. 8/2000 - Quaker Council of European Affairs v. Greece – which found that the situation in Greece was incompatible with Article 1§2 because of the excessive length of alternative service.
Armed military service lasts twelve months. Certain con­scripts may only serve nine months, others six and some three. There are two forms of replacement for armed mili­tary service: unarmed military service and alternative service. The two types of service differ in length. The rele­vant legislation is Acts 3257/29-7-2004 and 3421/13-12-2005, which stipulate that those performing unarmed military service must serve at least one and a half times, and those performing alternative service at least double, the length of armed military service.
The ministry of defence has adopted ministerial decree F 420/10/80347/S45/10-3-2006 to implement this legislation.
The periods of unarmed military service to replace armed military service are:
- 18 months for those who would have had to serve a full armed military service of 12 months;
- 13 months and 15 days for those who would have had to serve a reduced armed military service of 9 months;
- 9 months for those who would have had to serve a reduced armed military service of 6 months;
- 4 months and 15 days for those who would have had to serve a reduced armed military service of 3 months.
The Committee considers that these periods of unarmed military service to replace armed military service are compatible with Article 1§2 of the Charter.
The periods of alternative service to replace armed military service are:
- 23 months for those who would have had to serve a full armed military service of 12 months;
- 17 months for those who would have had to serve a reduced armed military service of 9 months;
- 11 months for those who would have had to serve a reduced armed military service of 6 months;
- 5 months for those who would have had to serve a reduced armed military service of 3 months.
The Committee notes that these periods are nearly double the length of armed military service. Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alternative service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty. Under Article 1§2 of the Charter, alternative service may not exceed one and a half times the length of armed military service. The Committee therefore considers that, even though the situation in Greece has improved significantly, it is still not compatible with Article 1§2 of the Charter.”

“Service required to replace military service
In its previous conclusions, the Committee noted that alternative service lasted 24 months, while military service lasted twelve. This prompted the Committee to conclude that the situation was not in conformity with Article 1§2 of the Revised Charter because the length of alternative service excessively restricted the worker’s right to earn a living in an occupation freely entered upon.
Although it did not fall within the reference period, the Committee takes due note of the adoption of Act No. 156-XVI of 6 July 2007 on the organisation of (alternative) civil service, which reduces the length of service to twelve months. The Committee considers that, this reform will enable Moldova to be in conformity with Article 1§2 of the Revised Charter on this point. However, the situation was not in conformity with the Revised Charter during the reference period. It asks, however, for the next report to indicate when the law has come into force.”

“Service required to replace military service
In its previous conclusions, the Committee found that the situation was not in conformity because alternative service lasted 24 months instead of 12 and this was excessive. It took the view that the additional 12 months during which the persons concerned were deprived of the right to earn a living through freely undertaken work went beyond reasonable limits in relation to the length of military service. The Committee notes that, under Act No. 446/2006, which came into force on 1 January 2007, the length of alternative service is now to be set by a Government decision. According to the report, it is planned to set this at twelve months.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes a replacement service, it cannot make the replacement service longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine, in order to avoid the replacement service being chosen as the most advantageous solution rather than felt as a constraint.
The Committee considers that, this reform will enable Romania to be in conformity with Article 1§2 of the Revised Charter on this point. However, the situation was not in conformity with the Revised Charter during the reference period. It asks, however, for the next report to indicate when the law has come into force.”

“Service in place of military service
The Committee previously noted that legislation provided for alternative service to compulsory military service, but sought further clarification on the length of such alternative service. In December 2004 the length of alternative service was reduced to between 12 months (minimum) and 18 months (maximum) and is (according to other sources1) currently set at 16 months duration. Military service lasts between eight months (minimum) and 11 months (maximum).
The Committee recalls that under Article 1§2 the duration of alternative service may not exceed one and half times the length of military service. The Committee notes that according to the information available to it alternative service may amount to double the length of military service. The situation is therefore not in conformity with the Revised Charter on this point.
The Committee refers to its question in the General Introduction to these Conclusions as to whether legislation against terrorism precludes persons from taking up certain employment.”

“Service in place of military service
Under the Military Service Act the length of military service is either 180, 270 or 362 days. According to the report the majority of conscripts perform at least 270 days (52.3 %) and 47.7 % perform 180 days. The duration of unarmed military service is 330 days and alternative civilian service 395 days.
The Committee has previously found that the situation is not in conformity with the Revised Charter on the grounds that the length of alternative service was more than double the length of compulsory service performed by the majority of conscripts (at that time 64,2 % of conscripts performed 180 days of military service. Although the situation has altered slightly during the reference period, (see above), the Committee notes that it has only altered slightly and that the length of civilian service remains more that double the minimum period of military service which is under taken by almost half of all conscripts.
Therefore the Committee maintains that the length of alternative civilian service remains a disproportionate restriction on a worker’s right to earn a living in an occupation freely entered upon.
The Committee invites the Government to reply to its in the General Introduction to these Conclusions as to whether legislation against terrorism precludes persons from taking up certain employment.”

“Service in place of military service
Since the case of Quaker Council of European Affairs v. Greece Complaint No. 8/2000 decision on the merits 25 April 2001 Greece has been found to be in breach of Article 1§2 on the grounds that the length of service alternative to military service is excessive. The legal regulations governing alternative military service have been amended over the years, although in its previous conclusion the Committee noted that the length of alternative service was still excessive in that it usually represented more than double the length of compulsory military service.
New legislation on this issue has again been introduced during the reference period; those who serve alternative civilian service instead of the average military service (or unarmed military service) are now liable to serve 23 months, instead of 30 months as was set previously (those who serve reduced armed service of nine months are now liable for 17 months instead of 25; those who serve reduced armed service of six months are now liable for 11 months instead of 20 and those who serve reduced armed service of five months are now liable for 3 months instead of 15). The length of full-armed military service is set at twelve months.
The Committee notes that the new legislation provide for a significant reduction in the length of alternative service; however it recalls that under Article 1§2 the duration of alternative service may not exceed one and half times the length of military service and consequently the situation in Greece can not be considered as being in conformity with Article 1§2 of the Charter.”

A Conscientious Objector's Guide to the International Human Rights System

European Committee of Social Rights: Collective Complaint procedure

Summary

The 1995 Additional Protocol to the European Social Charter establishes a system of Collective Complaints, which mainly allows trade unions or their international organisations to file collective complaints with the European Committee of Social Rights in relation to non-compliance with the Charter. The Collective Complaint procedure does not establish a system of individual complaints, but is meant for cases of non-compliance in a State's law or practice with provisions of the European Social Charter.
If successful, the European Committee of Social Rights will render a decision stating that the State concerned is not in compliance with the European Social Charter, and the Committee of Ministers of the Council of Europe will follow up with a resolution.

1. Likely results from use of mechanism

If the complaint is declared admissible and upheld by the European Committee of Social Rights, the Committee will take a decisions on the merits of the case. This decision will be transmitted to the parties to the complaint, and to the Committee of Ministers of the Council of Europe.
According to article 9 of the 1995 Additional Protocol, if the European Committee of Social Rights “finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter”.
The decision of the European Committee of Social Rights will be made public once the Committee of Ministers has passed a resolution, or at latest four months after the decision has been transmitted to the Committee of Ministers. Before this, the parties to the complaint are not allowed to publish the decision.

3. Who can submit information?

Articles 1 and 2 of the Additional Protocol define in detail the kind of organisations which can submit a collective complaint. These are:
1. International NGOs with participatory status to the Council of Europe, and representative national organisations of employers and trade unions; and
2. national trade unions (if the State does so allow) can lodge a complaint at any time.
In additional to participatory status, the international NGO needs to be competent in the field and be on a list published by the Council of Europe.
A list of organisations is available at http://www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled....

4. When to submit information?

A Collective Complaint can be lodged at any time.

5. Special rules of procedure or advice for making a submission?

Part VIII of the Rules of the European Committee of Social Rights deal in detail with the Collective Complaint procedure. With few exceptions, a Collective Complaint needs to be submitted in one of the official languages of the Council of Europe (French and English).
A complaint has to be lodged in writing, has to be signed by a representative of the NGO, and needs to state clearly with which provisions of the European Social Charter the State concerned does not comply, and why.

6. What happens to the submission (how long will it take)?

A complaint will be registered with the Secretariat, and a member of the European Committee of Social Rights will be appointed to act as Rapporteur.
The State concerned will first be requested to submit written observations as to the admissibility of the Complaint. The complainant may then be invited to respond to the observations submitted by the Government. However, the European Committee of Social Rights can also decide to not involve the State and the complainant, if the complaint is either manifestly admissible or inadmissible. The decision on admissibility will be published on the website of the European Committee of Social Rights.

After a complaint has been declared admissible, the Committee will examine the merits of the case. The Committee will first ask the State concerned to submit written observations on the merits. Following this, the complainant will be given the opportunity to comment on the submission of the State.

International trade union organisations and other States parties to the Revised European Social Charter are also given the opportunity to comment on the submissions. Should one of the parties to the complaint request it, the Committee will decide whether to hold a hearing.

Finally, the European Committee of Social Rights will take a decision on the merits of the case. This decision includes the reasons, and may include dissenting opinions. The decisions will be transmitted to the Committee of Ministers of the Council of Europe. The Committee of Ministers will then pass a resolution based on the decision by the European Committee of Social Rights.

The decision of the European Committee of Social Rights will be made public once the Committee of Ministers has passed a resolution, or at latest four months after the decision has been transmitted to the Committee of Ministers. Before this, the parties to the complaint are not allowed to publish the decision.

7. History of the use of the mechanism.

In relation to conscientious objection to military service, the European Committee of Social Rights has only been used once so far (as of July 2010). In the case of Greece, the Quaker Council of European Affairs lodged a complaint (No. 8/2000) regarding the treatment of conscientious objectors in the country. On 25 April 2001 the Committee found that Greece is violating the European Social Charter by keeping conscientious objectors away from the labour market for a time disproportional longer than soldiers and therefore is in breach of Article 1 para 2 of the Charter.

Contact Details:

Secretariat of the European Social Charter
Council of Europe
Directorate general of Human Rights and Legal Affairs
Directorate of Monitoring
F-67075 Strasbourg Cedex
Tel. +33-3-88 41 32 58
Fax. +33-3-88 41 37 00

Robin R. Churchill and Urfan Khaliq: The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights? EJIL (2004), Vol. 15 No. 3, 417–456, http://ejil.oxfordjournals.org/content/15/3/417.full.pdf, accessed 6 December 2012

(Adopted by the Committee of Ministers on 6 March 2002
at the 786th meeting of the Ministers' Deputies)

The Committee of Ministers,[1]

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints,
Considering the complaint lodged on 10 March 2000 by the Quakers’ Council for European Affairs against Greece,
Considering the report submitted to it by the European Committee of Social Rights, in which the length of civilian service served by conscientious objectors in Greece is found not to be in conformity with Article 1, paragraph 2 of the Charter,
1. takes note that the report of the European Committee of Social Rights has been circulated to the competent authorities including the Parliament and is being translated into Greek;
2. takes note of the recent measures including the revision of the Greek Constitution (Official Gazette 84/4/17-4-2001) and the decrease of the length of military service (Official Gazette 1407 – 22 October 2001);
3. takes note that the Greek Government undertakes to take the matter into consideration with a view to bring the situation into conformity with the Charter in good time.

Note [1] In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies in their composition restricted to the Representatives of Contracting Parties to the European Social Charter or the revised European Social Charter participated in the vote, that is Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Turkey and the United Kingdom.

“The Committee observes (…) that the duration of civilian service is 18 months longer than that of the corresponding military service, be it 18, 19 or 21 months, or reduced to 12, 6 or 3 months. A conscientious objector may therefore perform alternative civilian service for a period of up to 39 months. The Committee considers that these 18 additional months, during which the persons concerned are denied the right to earn their living in an occupation freely entered upon, do not come within reasonable limits, compared to the duration of military service. It therefore considers that this additional duration, because of its excessive character, amounts to a disproportionate restriction on “the right of the worker to earn his living in an occupation freely entered upon”, and is contrary to Article 1 para 2 of the Charter.”